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February 6, 2005

The Booker battles: questions of perspective

Though it is not quite the Eagles versus the Pats, teams of circuit and district judges are assembling and tussling in fascinating jurisprudential battles over Booker. In the circuit courts, the battle is over plain error and who may can secure resentening after Booker. In the district courts, the battle is over how much weight to give the (advisory) guidelines in sentencings after Booker. Though neither battle can be summarized in a few sentences (both now comprise hundreds of pages of opinions), it is valuable to note how the battles both reflect questions of perspective. Let me explain:

The Booker Battle over plain error: process versus outcomes

In the decisions of Hughes from the Fourth Circuit and Oliver from the Sixth Circuit and Crosby from the Second Circuit, we see circuits courts particularly concerned with the process through which sentences are imposed. Since courts conducting sentencings before Booker did not use — really could not have possibly used — the unexpected new 3553(a)-centered process established for federal sentencing by Booker, these courts are inclined to require or permit post-Booker resentencings.

In contrast, Bruce from the Sixth Circuit and especially Rodriguez from the Eleventh Circuit show circuit courts concerned particularly with sentencing outcomes. Since post-Booker sentencing outcomes can — and perhaps often will for some classes of defendants — mirror pre-Booker outcomes, these courts are inclined to neither require nor permit post-Booker resentencings.

This battle is especially intriguing since both the plain error standard and the Booker decision mixes procedure and substance. For that reason, I am especially drawn to the Second Circuit's middle-ground approach in Crosby which calls for limited remands to allow district courts to reconsider whether it should conduct full resentencings. But then again, I am also moved by the Eleventh Circuit's funny observation in Rodriguez that the Second Circuit has called for "a do-over to decide if there should be a do-over." (For more on do-overs, see this long ago post on Do-overs? and a more recent post here further discussing the Eleventh Circuit's pre-Booker discussion of do-overs.)

In the views of Judge Cassell in Wilson I and Wilson II and Judge Kopf in Wanning, the work of the US Sentencing Commission in the guidelines fully reflects the 3553(a) purposes of punishment and judges should not readily seize upon those purposes to justify a "variance" from the now-advisory guidelines. In other words, for Judges Cassell and Kopf, the system-wide view on purposes provided by the USSC should predominate in individual cases and thus the guidelines should still be given "heavy weight."

But Judge Adelman in Ranum and Judge Pratt in Myers identify in various ways how they think the guidelines fail to fully reflect the 3553(a) purposes of punishment. Consequently, they clearly believe a case-specific view on purposes should predominate in individual cases and thus the guidelines should be one of the many important considerations that now come to bear at sentencing.

To play a legal John Madden, I will predict a winner in this battle: I think the case-specific perspective better fits and fulfills the language and structure of 3553(a) and the spirit and terms of Booker. Of course, on this issue I am a bit biased: most of my early academic writings stressed why federal judges should have broad discretion even within mandatory federal guidelines to be attentive to case-specific realities that system-wide rules cannot fully capture. See Balanced and Purposeful Departures: Fixing a Jurisprudence that Undermines the Federal Sentencing Guidelines, 77 NOTRE DAME LAW REVIEW 21 (2000); A Common Law for This Age of Federal Sentencing: The Opportunity and Need for Judicial Lawmaking, 11 STANFORD LAW & POLICY REVIEW 93 (1999).

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I've begun to argue that the guidelines should be given substantial weight only in analyzing the law-enforcement objectives of sentencing (e.g., general deterrence, incapacitation, promoting respect for the law) but no weight in analyzing the individual ones (e.g., specific deterrence, rehabilitation, impact on defendant's family).

Under 18 U.S.C. 3553(a)(2)(A)-(C), sentencing courts are required to consider "the need for the sentence imposed . . . to reflect the seriousness of the offense, to promote respect for the law, . . . to provide just punishment for the offense . . . to afford adequate deterrence to criminal conduct [and] to protect the public from further crimes of the defendant." There's no question that the Sentencing Commission has devoted substantial resources to analyzing these broad "law-enforcement" issues. As Judge Cassell noted in Wilson, for example, "the court is poorly suited to consider elasticities and other factors that would go into a sensible deterrence calculation. On the other hand, the Sentencing Commission with its ability to collect sentencing data, monitor crimes rates, and conduct statistical analyses, is perfectly situated to evaluate deterrence arguments." Wilson I at 17. (As I've previously noted, this observation is accurate only with respect to general, not specific, deterrence). Thus, courts should defer to the Commission's analysis and conclusions about these general issues in which it has superior expertise.

On the other hand, the guidelines deem irrelevant, in establishing a sentencing range, consideration of defendants' individual characteristics, such as youth or advanced age, educational background, superior vocational skills, significant mental and emotional conditions, unique physical appearance, history of drug dependence, positive employment history, strong family ties and responsibilities, relevant socio-economic status, history of service in the military, civic or charitable, public-service work, employment-related contributions, record of prior good works and lack of guidance as a youth. See section 5H1.1 - 5H1.12. Thus, they are not intended to guide courts in complying with section 3553's mandate to consider "the history and characteristics of the defendant [and] the need for the sentence imposed . . . to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner." 18 U.S.C. 3553(a)(1), 3553(2)(D). For that, courts must look to the hundreds of years of common law (and common sense) experience in sentencing, and must use their own skill and experience in assessing the individual defendants who appear before them.

Thus, significant weight should be given the Commission's findings in the areas in which it has superior expertise and has applied it to provide guidance. In those in which it has none and in which a sentencing judge's information and expertise is, by definition, superior, courts must rely on their own judgment, skill and experience. As section 3553 does not specify what relative weight should be given to these two areas--in fact, it suggests they are of equal significance--courts can strive only to be "reasonable" in fashioning sentences they believe address and best satisfy all the various objectives of punishment.

Posted by: Alex E. | Feb 7, 2005 12:35:40 AM

As a practicioner in the Second Circuit, I think calling the Crosby solution a "do over" is nothing more than a cheap shot. I share with Judge Newman the notion that prejudice is the key to both plain and harmless error inquiries, and the sentencing judge can answer that question quickly. Why not ask him? It is ridiculous the amount of needless litigation these other circuits are causing. I guess if they want to consider each case individually, maybe they can, if they've got so much extra time on their hands. But why not just remand the cases? It's more efficient and almost certainly more just.

Posted by: David Lewis | Feb 9, 2005 9:00:54 PM

Or ask her?

Posted by: David Lewis | Feb 9, 2005 11:20:12 PM

I read it every morning before I begin the day in my life as a federal presentence probation officer ... By the way you were my editor in an article I wrote regarding relationship issues between defense counsel and POs. Thanks for the continued blog, blog, blog insight!

Posted by: vince romero | Feb 11, 2005 9:52:29 AM

I work with a defense attorney in Alabama and had a question regarding Federal sentecing for persons that plead guilty in Federal court.

After the judge takes the guilty plea, does the judge have a limited amount of time to sentence the person that pleaded guilty? What if the judge does not sentence within that time period? Does the prosecutor have to file something with the judge or the court in order to extend the period between the guilty pleading date to sentencing date?

Your insight would be helpful?

Thanks
JB

Posted by: JB | May 19, 2005 11:19:59 PM

i used this site in an effort to find out what are the sentencing guidlines for an ex-offender if convicted of my second posession of crack.. i however was not found in posession of the drug but it was however said to be recovered from a rain slicked highway in San Antonio, tx with medium traffic around 10pm... the officer says he saw the drugs thrown from the car... this is appx the 4th time in 2 months.. there is some new task force in the area and there are quite a few people that are going through the same form of harrasment.. i am innocent of this crime but what jury would believe me.... thanx

Posted by: Marc | Dec 31, 2006 7:52:54 PM

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